United States of America v.  ELLANCER ALLEN MCGRADY, a/k/a Lance

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4384 
ELLANCER ALLEN MCGRADY, a/k/a
Lance,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Richard L. Voorhees, District Judge.
(CR-94-44)
Submitted: May 31, 2001
Decided: June 29, 2001
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Roger T. Smith, Asheville, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Jerry W. Miller, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

-- 1 of 3 --

OPINION
PER CURIAM:
Ellancer Allen McGrady was originally sentenced to a term of life
imprisonment following a jury trial and convictions for conspiracy to
possess with intent to distribute cocaine and cocaine base, as well as
various related counts. He appealed his sentence and we remanded for
resentencing on the issue of whether McGrady possessed a firearm
and therefore was subject to an enhancement pursuant to U.S. Sen-
tencing Guidelines Manual § 2D1.1(b)(1) (1998). On remand, the dis-
trict court held a second sentencing hearing and again applied the
enhancement. McGrady appeals, contending that the district court
erred in applying the enhancement. McGrady also attempts to chal-
lenge his sentence, arguing that the findings the court made regarding
drug quantity and possession of a weapon should have been presented
to a jury, relying upon Apprendi v. New Jersey, 530 U.S. 466 (2000).
Finding no error, we affirm the judgment.
First, even if the Apprendi issues McGrady wishes to raise were
before the court, his claims are without merit. As to drug quantity, his
indictment specified an amount of cocaine and crack cocaine suffi-
cient to expose McGrady to a life sentence. The indictment was read
to the jury during jury instructions. Therefore, there is no error under
Apprendi. United States v. Richardson, 233 F.3d 223, 231 (4th Cir.
2000), petition for cert. filed, Mar. 19, 2001 (No. 00-9234). It also
was not error to make a determination that McGrady possessed a fire-
arm for sentencing purposes. Sentencing enhancements that do not
increase the statutory maximum do not violate the principles of
Apprendi. United States v. Kinter, 235 F.3d 192, 200-01 (4th Cir.
2001), cert. denied, ___ U.S. ___, 69 U.S.L.W. 3618 (U.S. Mar. 19,
2001) (No. 00-8591).
Section 2D1.1(b)(1) of the Sentencing Guidelines calls for the
imposition of a two-level enhancement "[i]f a dangerous weapon
(including a firearm) was possessed. The enhancement should be
applied if the weapon was present, unless it is clearly improbable that
the weapon was connected with the offense." USSG § 2D1.1, com-
ment. (n.3). In order to avoid application of the adjustment, the defen-
dant must show that the connection between the drug offense and the
2 UNITED STATES v. MCGRADY

-- 2 of 3 --

dangerous weapon possession was clearly improbable. United States
v. Harris, 128 F.3d 850, 852-53 (4th Cir. 1997). The district court’s
factual findings pursuant to USSG § 2D1.1(b)(1) are reviewed for
clear error. United States v. Apple, 915 F.2d 899, 914 (4th Cir. 1990).
Our review of the record leads us to conclude that the district court
did not clearly err in applying this enhancement. Further, to the extent
that McGrady alleges that Sherry Waters, the Government’s witness,
was not credible, the district court’s credibility determination is not
reviewable on appeal. United States v. Saunders, 886 F.2d 56, 60 (4th
Cir. 1989).
We therefore affirm the judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
3 UNITED STATES v. MCGRADY

-- 3 of 3 --